Mr X and The Health Service Executive

Whether the HSE was justified in refusing access to further records, relating to the applicant's request for records concerning all meetings, correspondence and telephone conversations between the HSE and his siblings regarding their mother, from 1 November 2010 to 17 October 2011.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 &amp; 2003 (the FOI Act)

Background

On 18 October 2011, the applicant made an FOI request for copies of records relating to all meetings, correspondence and telephone conversations between the HSE and his siblings in respect of their mother, from 1 November 2010 to 17 October 2011. The HSE's decision of 28 October 2011 identified a small number of records as relevant to the request, some of which it fully released and the rest of which it withheld in full. Following the applicant's internal review application of 7 November 2011, the HSE issued an internal review decision on 2 December 2011, in which it said it considered 119 records as relevant to the request (which it subsequently clarified to be 120 records). It released some of these records in full and withheld the remainder. On 8 March 2012, the applicant sought a review by this Office of the HSE's refusal to fully release all the records that it had identified as relevant to the request.

In carrying out my review, I have had regard to copies of 120 records identified by the HSE's internal review decision as relevant to the request (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the HSE and the applicant as set out above; to details of various contacts between this Office and the HSE; and to details of various contacts between this Office and the applicant, particularly the letter sent to him by Ms Anne Lyons, Investigator, dated 15 March 2013 (to which I will refer as "the preliminary views letter" in the remainder of this decision, as necessary). I have also had regard to the provisions of the FOI Act and, in considering the public interest at section 28(5)(a), the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner(to which I will refer as "the judgment").

As the timeframe in which Ms Lyons invited a response to her preliminary views letter has now elapsed without reply from the applicant, I have decided to conclude the review by way of a formal binding decision.

Scope of the Review

The scope of this review is confined to assessing whether or not the HSE is in accordance with the terms of the FOI Act in refusing to fully release the remaining records identified by it as relevant to the request.

Findings

Relevant Records
Of the records considered by the HSE's internal review decision to be relevant to the request, records 29-33; 37-38; 40; 45; 50-52; 54-55; 66-74; and 103-104 were released, with the following withheld:

Records 1-28; 34-36; 39; 41-44; 46-49; 53; 56-65; 75-102 and 105-120.

As explained to the applicant in the preliminary views letter, a review by this Office has been recognised by the Courts to be by way of a hearing de novo in the light of the facts and circumstances applying at the time of that review. The Courts have also found the release of a record under the FOI Act to be akin to its release to the world at large. Furthermore, section 8(4) does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest, in so far as they may be construed to be valid public interest arguments). Finally, while the FOI Act requires the Commissioner to provide reasons for his decisions, section 43(3) of the FOI Act requires him to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record.

Copies of Records
Section 34(9)(a)(iii) of the FOI Act provides that the Commissioner may discontinue a review under this section of the FOI Act if the matter to which the application relates is, has been or will be, the subject of another review under section 34 of the FOI Act.

The applicant had previously submitted an application to this Office, concerning a separate FOI request he made to the HSE for records concerning his mother. A decision issued on the case concerned (our reference 120018) on 22 March 2013. Certain records that were the subject of the decision in case 120018 are also at issue in the review at hand. Thus, the preliminary views letter said that this review should be discontinued in respect of the records concerned, in accordance with the provisions of section 34(9)(a)(iii). The documents concerned are records 75-81 (which are, respectively, copies of records 12, and 16-21 as considered in case 120018); records 83-84 (copies of record 23 in case 120018); records 108-109 (copies of records 18 and 19 in case 120018); and records 110 and 111 (copies of records 62 and 102 in the present review, 120056). I concur with this view and find accordingly.

I also find that the review in respect of record 82 in the case at hand should be discontinued under section 34(9)(a)(iii), in light of the HSE's recent confirmation that it is a copy of record 22 as considered in review 120018 (as flagged in the preliminary views letter).

Section 22(1)(a)
As set out in the preliminary views letter, section 22(1)(a) of the FOI Act provides for the withholding of a record under the FOI Act where it would be exempt from production in proceedings in a court on the ground of legal professional privilege. The provision does not require the consideration of the public interest.

The Information Commissioner accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and

confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation.

Furthermore, the Commissioner has found that legal professional privilege also attaches to records that are part of a continuum of correspondence arising from an original request for advice (Case Number 020281 Mr. X and the Department of Education and Science, which is available on the Office website oic.ie) refers.

The preliminary views letter expressed the view that elements of records 12, 13, and 22, and records 27-28, 46-48, 60-61, 65, 94-102, 105-107 in full, can be said to comprise confidential communications made between the HSE and its professional legal adviser for the purpose of obtaining and/or giving legal advice, or that they are records forming part of a continuum of correspondence arising from an original request for advice, and are exempt under section 22(1)(a) of the FOI Act. I agree with this view and find accordingly.

Section 28
The remaining records at issue contain the personal information of the applicant's mother; the personal information of other third parties; the personal information of the applicant's mother and third parties; the joint personal information of the applicant and his mother; or the joint personal information of the applicant's mother, the applicant and others.

Statutory Instrument No 387 of 2009
As explained in the preliminary views letter, records containing the personal information of a party other than a requester are in the normal course exempt from release under sections 28(1) or 28(5B) of the FOI Act. Section 28(1) of the FOI Act provides that, subject to other provisions of section 28, a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual. Section 28(5B), also subject to other provisions of section 28, provides for the mandatory refusal of a record that contains the joint personal information of the person making the FOI request and that of another party or parties. Thus, section 28(1) would apply to a record containing the personal information of a requester's parent, whilst section 28(5B) would apply to a record containing the joint personal information of a requester and their parent.

However, Statutory Instrument (S.I.) No 387 of 2009, which was made in accordance with section 28(6) of the FOI Act, provides for the release of a person's records to their guardian, where the person has "a mental condition or mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner and why, by reason thereof, are incapable of exercising their rights under the Act", and where such release "would, in the opinion of the head, having regard to all the circumstances and to any guidelines drawn up and published by the Minister, be in [the person's] best interests." Thus, notwithstanding sections 28(1) and 28(5B) of the FOI Act, this Office's decision in case 120018 noted that the HSE's decision to release to the applicant records concerning his mother, and records containing their joint personal information, appeared to have been made in accordance with S.I. 387 of 2009.

Anticipating that the applicant might consider himself to be similarly entitled to such records in the present review, the preliminary views letter noted that the applicant's mother had been declared a Ward of Court on 21 November 2012, such that the General Solicitor for Minors and Wards of Court (which is part of the High Court) was appointed as the Committee to control her affairs. It noted that Court approval seems necessary in relation to any matter affecting a Ward of Court, including the release of any information relating to the Ward, and that there was no evidence of the Committee having consented to the release to the applicant of information concerning his mother. The letter also explained that the de novo nature of this review means that the HSE's decision to release similar information in case 120018, before the applicant's mother became a Ward of Court, does not create a precedent that must be followed in the case at hand.

However, the applicant did not provide this Office with any evidence of such consent by the Committee, or seek to argue that, nonetheless, release of the relevant records would be in his mother's best interests. In such circumstances, I have no reason to consider that it would be in the applicant's mother's best interests for information concerning her to be released to the applicant under S.I. 387 of 2009. I find accordingly.

Application of Sections 28(1) and 28(5B) to the Withheld Records
It follows from the preceding analysis that any of the records at issue that contain the personal information of the applicant's mother, or their joint personal information, remain exempt from release under sections 28(1) and 28(5B) of the FOI Act. The preliminary views letter noted that section 28(1) would also apply to those records (or excerpts of records) that can be said to contain the personal information of other third parties, or the personal information of the applicant's mother and third parties, whilst section 28(5B) would also apply to those records, or excerpts of records, that contain the joint personal information of the applicant, his mother, and/or other parties.

I agree with the above views, which I note the applicant has not sought to dispute. I find accordingly. It should also be noted that sections 28(1) and/or 28(5B) would also apply to those records that I have earlier in this decision found to be exempt under section 22(1)(a).

Section 28(2)
Section 28(2) provides that sections 28(1) and 28(5B) do not apply in certain circumstances. Having examined the withheld details, I agree with the preliminary view that section 28(2) is not relevant because the third party information contained in the records does not relate solely to the applicant; the third party or parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information that would or might be made available to the general public; nor is disclosure of the information necessary to avoid a serious and imminent danger to the life or health of an individual. No arguments to the contrary have been made by the applicant, and I find that section 28(2) does not apply in the case at hand.

Section 28(5)
Section 28(5) provides that records, which are exempt under sections 28(1) and 28(5B), may be released in certain limited circumstances.

As explained in the preliminary views letter, section 28(5)(a) provides that a record, which has been found to be exempt under section 28(1) or 28(5B), may be released if it can be demonstrated that "on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld". It outlined the approach, as indicated by the Supreme Court in the judgment referred to earlier, that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.

Firstly, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). Secondly, the language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The FOI Act itself recognises the public interests in ensuring the openness and accountability of public bodies regarding how they conduct their business, and in ensuring that persons can exercise their rights under the Freedom of Information Act. I am satisfied that the material released to the applicant to date sufficiently serves these public interests, particularly that in ensuring the HSE's openness and accountability regarding its care of his mother. Although release of the remaining details may further serve these public interests, it is not clear to me that the extent to which they would be served accordingly is sufficient to require the breach of the Constitutional rights to privacy of the various third parties, including the applicant's mother, regarding what is inherently private information. Furthermore, the applicant, although invited to do so, has not identified any other true public interest that might warrant the release of the withheld records. Thus, I find that they should not be released further to section 28(5)(a) of the FOI Act.

Section 28(5)(b) provides that a record, which has been found to be exempt under sections 28(1) and (5B), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose information may be released. No argument has been made in this case as to how release of the records at issue would benefit the third parties, including the applicant's mother, to whom they relate. Thus, I find that no right of access arises to the remaining records at issue further to the provisions of section 28(5)(b) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's refusal of the withheld records.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.